The majority of countries around the world that still criminalise homosexuality are former British colonies or territories. Sodomy laws are a common feature in 16 of the 18 African Commonwealth nations. Almost all anti-sodomy laws date back to the British colonial era penal codes. These have never been repealed and are still in effect in almost all of the common law countries in Africa. Caselaw and customary practice have redefined these pieces of legislation, reshaping them as laws that criminalise any aspect of homosexual conduct and facilitate extreme homophobic policies in a number of countries. In recent months, some Governments have sought to radically increase the penalties for individuals convicted under anti-sodomy laws, a worrying development from a human rights perspective.

Recent factual context

On 14 October 2009 the Hon. David Bahati (MP, Ndorwa County West, Kabale) tabled a private member’s Bill before the Ugandan Parliament titled the 'Anti-Homosexuality Bill'. This Bill expanded the existing range of punishments under Ugandan sodomy laws and introduced new offences aimed at criminalising homosexual relationships in general. His proposals attracted a considerable amount of international outrage, not least because the Bill mandated the death penalty as punishment in some cases. International reactions to the Bill had a significant impact outside Uganda, so much so that President Museveni reportedly distanced himself from it because of the potential foreign policy and diplomatic implications that adopting such a policy would have.(3) On the 5 February 2010 it was revealed that some of the Bill’s more draconian elements were to be removed from the draft Bill and the Deputy Foreign Minister Henry Okello Oryem assured the international community that “homosexuality is not a top priority for the people of Uganda." International figures such as US President Barack Obama have since denounced the Bill and the Cabinet Committee that reviewed it said the Bill had “technical faults in form and content” and described most of its clauses as redundant, repetitive of existing laws, or even useless.(4) By the end of May 2010, Ugandan Government had promised Germany that it would not support the Bill.(5)

In Malawi, two gay men, Tiwonge Chimbalanga and Steven Monjeza, were arrested after holding a traditional engagement ceremony on 30 December, 2009. The police claimed they were acting pursuant to public decency laws. On the 22 March 2010, it was announced that the men would face trial for engaging in homosexual acts and they were sentenced to 14 years in jail.(6) After increased international pressure, the Malawian President pardoned the two men on 29 May 2010 and they were free to go.(7) In addition, Peter Sawali, a human rights activist, was arrested for putting up posters that stated ‘gay rights are human rights’ on 3 February 2010. He was charged with causing a ‘breach of the peace.’

There have been a number of additional developments in other common law African states. Prime Minister Morgan Tsvangirai and President Robert Mugabe publically stated that they opposed gay rights and preferred to keep homosexuality illegal in the new Zimbabwean Constitution. In February 2010, five men were arrested in northern Mombasa and accused of planning a gay wedding. Although they were later released they were advised to leave the area for their own safety. Homosexuality is currently punishable by up to 14 years in prison in both Kenya and Zimbabwe.

The relationship between colonial law and common law

British colonial territories were by and large commercial enterprises that allowed customary law to be practiced alongside common law in certain spheres. Common law governed all commercial activities and customary law was reserved for matters involving colonised subjects. Criminal law was split between the two jurisdictions. Customary law was allowed to be appealed within common law courts, subject to the provisions of the 1865 Colonial Laws Validity Act.(8) In the 1920’s and ’30’s, authority for law-making was progressively passed over to colonial legislatures. These were largely elected by the white settler community and contained limited indigenous representation. The settlers frequently used the criminal law as a method of control, particularly with sodomy laws which aimed to control the morals of the community and provided brutal far-reaching powers to law enforcement officials.(9)

Upon independence the new Governments of the countries in question did one of three things with respect to criminal law. Some enacted a new criminal code that codified existing criminal practice, including the colonial criminal code and other legislative provisions that the newly independent states thought important. Others simply amended existing colonial criminal or penal codes. Finally, some governments decided to keep the common law in place. Maintaining the common law system was a preferred choice because it provided a system of established precedent and training which was invaluable to the newly independent states.

Overview of homophobic legislation within Common law

The 1861 Offences Against the Person Act s. 61 states that: “Whosoever shall be convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Ten Years.” Section 62 criminalises attempts to commit buggery. The pre-statute position within English common law is not entirely clear but it appears to have been a feature of caselaw dealing with immoral crimes and has been referred to in statutes since the sixteenth century.

It should be noted that there were no anti-sodomy laws in French colonies, in line with the Napoleonic code. The French criminal code was imported directly into French African territories and unlike in British territories, there was no organised system for the application of native laws. The Napoleonic system is not bound by the precedents of previous judgements, which made it harder to apply customary anti-homosexual laws in secular courts.

The Indian Penal code provided a model template for sodomy laws. Referring to ‘sodomy’ as an odious concept, it punished those who engaged in ‘unnatural’ acts, although later drafts and other pieces of legislation explicitly referred to ‘sodomy.’ The formulation was more or less similar to Offences Against the Person Act s.61 in its reference to general criminal concepts. Different versions of the code were adopted throughout sub-Saharan Africa during the 1890’s and early 1900’s.(10)

Sodomy was decriminalised in the UK in the 1960’s but sodomy laws remained in force in several other common law jurisdictions. In the case of Bowers v Hardwick the US Supreme Court held that anti-sodomy laws were not necessarily discriminatory and that it was legitimate to violate an individual’s rights to privacy in certain circumstances. This ruling was subsequently overturned, however.(11) In a landmark decision, the South African Supreme Court held that Sodomy Clauses contravened the right to equal treatment before the law and violated an individual’s right to privacy.(12) The United Nations Human Rights Committee (UNHCR) stated that sodomy laws violate an individual’s right to privacy and in Toonen v Australia found that sodomy laws were discriminatory in a manner prohibited by the International Covenant on Civil and Political Rights (ICCPR).(13)

The current status of anti- sodomy laws in Saharan Africa

Egypt and Sudan were both British Colonies for substantial periods of time and both had sodomy laws based on the Indian model mentioned, but neither of them are members of the Commonwealth. The 1899 Sudanese Penal Code criminalised unnatural offences but imposed different sentences according to stated ‘aggravating’ factors such as age and consent. The maximum sentence varied from a fine to up to fourteen years in jail. Under the new Constitution, the Penal Code was replaced with Sharia Law in 1991. The penalty now consists of a number of different Sharia penalties, including death. In Egypt there is no expressed anti-sodomy law, but an individual can be prosecuted for "offences against public morals and sensitivities" which carries a maximum penalty of five years.

Three countries currently have no stated anti-sodomy laws on their statute books but they still subscribe to common law anti-sodomy presumptions. In Namibia, Lesotho and Swaziland, pre–1995 South African Laws have yet to be repealed, which means they are technically still in effect and it would be possible to prosecute an individual under their provisions. In practice, prosecution varies widely amongst the three countries. In Namibia, Lesbian, Gay, Bisexual and Transexual (LGBT) individuals can claim notional protections under the constitution, yet in practice this has not halted the large amount of harassment they endure in the civil sphere.(14) In Lesotho and Swaziland, LGBT discrimination is more widespread, but the only law in force is the common law and there are few reported cases where sodomy laws have been applied.

In Sierra Leone the entirety of the 1861 Offences Against the Person Act is still in force. The Act was ‘saved’ by the post-independence Constitution and it is still a functioning part of the country’s criminal law. In 2002, it was included as part of the substantive law of the Special Court for Sierra Leone – the hybrid tribunal set up to prosecute those responsible for war crimes during civil war. The same appears to be true in the Seychelles, but there authority that directly supports this conclusion is scant.

For the 11 other common law countries where sodomy laws are in force, the status of each country’s laws are set out below.(15) The laws of Malawi, Uganda and Zimbabwe were discussed earlier.

Botswana
The Penal Code s.164 criminalises any person who has carnal knowledge of another which is ‘against the law of nature’. The maximum sentence for the crime is seven years. Section 167 of the act criminalises the procuring and attempt of a ‘gross act of indecency.’ A crime ‘against the laws of nature’, as defined by the Code, refers to both gay and lesbian relationships. The Act does not criminalise homosexuality directly but by implication.

The constitutionality of s.164 and s.167 was challenged in Kanane v. State.(16) The defendant argued that the law violated expressed constitutional provisions guaranteeing freedoms of association, conscience and equality before the law. It was also argued that the law violated an individual’s right to privacy. The High Court rejected the argument that the law was discriminatory and reaffirmed the gender neutrality of the anti-sodomy laws. In so doing the court interpreted s. 164 and 167 as provisions expressly intended to ban homosexuality. The court held that the state had a right to limit expressed freedoms such as association, conscience and expression in order to protect the public. In this case the public were being ‘protected’ from experiencing “moral decline, health problems, and weak family structures” which would (apparently) be the result of decriminalised homosexual relationships. The privacy arguments were rejected on the grounds that it was necessary to maintain a “secure and stable society.”(17)

Cameroon
Section 347 of the Penal Code of 1967, amended in 1972, criminalises sexual relations with persons of the same sex. The maximum penalty is a fine or a term of imprisonment of less than five years. Cameroon was condemned at its Universal Periodic Review hearing for imprisoning gay and lesbian individuals. The UN working group on Arbitrary Detention said that the arrests carried out under the Penal Code were arbitrary and in contravention of the ICCPR.

The Gambia
Article 144 of the 1965 Criminal Code, amended in 2005 criminalises carnal knowledge. It is a felony within Gambian law and all forms of carnal knowledge are punished equally with prison terms of up to 14 years. Article 144 s (2) specifies that carnal knowledge includes anal, oral and other ‘homosexual acts.’

Ghana
Under s. 104 of the 1960 Criminal Code, amended in 2008, carnal knowledge is criminalised. Having ‘carnal knowledge’ of an individual under the age of 16 or without consent is treated as a first degree felony by Ghanaian law. Upon conviction a person can be imprisoned for a term of between five and twenty five years. Having sex with someone over the age of 16 or with an animal is categorised as a misdemeanour in Ghanaian law.

Kenya
Sections 162, 163 and 165 of the Penal Code criminalise carnal knowledge, it is treated as a felony and the maximum sentence is fourteen years corporal punishment can be ordered for cases of attempted sodomy. Aggravating factors include sex without consent and sex with someone under the age of 14.

Nigeria
Nigerian federal criminal law penalises carnal knowledge in a similar fashion to other criminal codes with a maximum penalty of 14 years upon conviction.(18) Alongside federal law the sates of Kano and Zamfara also have their own Sharia codes which criminalise homosexuality allowing for stoning in the case of married people.(19) In January 2006 there was an attempt to pass the Same Sex Marriage Prohibition Act which contained far reaching anti-homosexuality provisions, including the criminalisation of same sex couples holding hands. The Act has not been voted on but also has not been withdrawn from consideration.

Mauritius
Some sources seem to suggest that Mauritius is the country where there is the greatest chance of repeal. Section 250 of the Criminal Code criminalises sodomy and bestiality. This section was repealed in part by the Protection of the Child (Miscellaneous Provisions) Act 1998 now where the victim of sodomy or bestiality is either a minor or a physically or mentally handicapped child; the punishment is a minimum of two years imprisonment. Suspended sentences and fines are completely excluded as means of punishment and jail time appears to be mandatory. In a recent case an individual was charged with sodomy in a heterosexual relationship.(20)

Tanzania
The 1945 Penal Code was amended by the 1998 Sexual Offences Special Provisions Act. Sections 154 and 155 of the Code make any “unnatural offences” punishable for up to thirty years imprisonment and makes any attempted “unnatural offence” punishable by twenty years imprisonment. Unnatural offences have been interpreted widely by the lower courts in Tanzania and have included a range of offences which have lowered the evidentiary threshold for charging under the Penal Code. In July 2009 the UNHCR urged Tanzania to repeal laws that criminalised sex between consenting adults.

Zambia
The 1995 Edition of the Penal Code, Sections 155, 156 and 158, criminalises carnal knowledge with a maximum sentence of 14 years. Attempted sodomy receives a sentence of up to seven years. Procuring or attempting to procure a man for sexual purposes receives a sentence of up to 5 years.

The term ‘carnal knowledge’ as noted in the cases of Botswana, Ghana, Gambia, Kenya and Zambia, is a deliberately vague term that can be interpreted expansively to target a wide range of homosexual behaviour. It has allowed laws that were originally confined to private sexual acts to be used to criminalise any act publicly deemed to be ‘homosexual’.(21) Gay rape and bestiality are treated as conceptually analogous with the term ‘carnal knowledge’ which gives added impetus to the idea of a moral code propagated within the law.

The dangers of anti-sodomy laws

The political impetus for greater powers of enforcement comes from a variety of different sources, but the presence of common law sodomy laws within criminal codes is particularly dangerous, for a number of reasons: (22)

It legitimises anti-homosexual campaigns because it allows advocates to claim that their purpose is to enforce existing criminal offences.

The legislation allows crackdowns on LGBT advocates to take place in a sphere outside of direct legislative scrutiny. This directly impedes human rights advocacy because, in order to increase the effect of existing legislative provisions, no new legislative debate on matters of principle (i.e. privacy) is necessary because the debate remains one of proportion under existing laws.

It allows anti-homosexual leaders to cite such laws as evidence of a historic foundation to homophobic sentiments and to claim that LGBT relationships have always been recognised as ‘un-African’.

These laws are framed in a deliberately broad manner in order to grant law enforcement agents the maximum possible amount of power. This means that there is potential for these laws to be used as discretionary forms of state control, as is the case in Tanzania and Kenya.

There is little chance for collective Common law reform at a Commonwealth level due to powerful support for sodomy laws from certain Asian states.(23) The progress achieved in relation to the Ugandan Bill was limited at the Commonwealth level. Repeal in line with the African Charter of Human and People’s Rights is legally possible, given the equality provisions of the Charter, but it depend on an application being ruled on in a favourable manner. Previously, certain Commissioners expressed the view that homosexuality was incompatible with African values and was a different case of discrimination.(24)

The danger of these laws is that they allow a sphere of arbitrary decision making that can respond to homophobic political needs. Repeal of these laws is likely to be very difficult and to mobilise political activity, but the danger of having them on the books is that they can be enforced at random. Worse still, their existence provides capital to homophobic political forces who cite the laws’ historic precedent as evidence of the ‘unacceptability’ of homosexuality.